Criminal Appeal against conviction of manslaughter- joint
enterprise or common purpose - Court of Appeal finding that
there was a common purpose to use a lethal weapon during
an assault which resulted in the death of Fuller, the deceased.

J
U D G M E N T

The appellant
Mark August and Linsford Bailey were retried jointly in the
Supreme Court. Both were convicted of the manslaughter of
Walford Fuller and sentenced to imprisonment with hard labour.
August has appealed against his conviction. Bailey has not.

The evidence
led by the prosecution was to the effect that on the morning
of 24th May, about 2:15 a.m., there was an altercation between
Fuller and Bailey during which Fuller assaulted Bailey and
threatened him with a shotgun. This altercation attracted
bystanders outside The Place Disco where a dance was being
held. P.C. Goldson who was assisting the doorman at the Disco
went outside and saw Fuller with a shotgun pointed upwards.
P.C. Goldson went to him and asked him for the gun. When Fuller
refused, P.C. Goldson held on to the gun and a struggle started
between them, during which Fuller fell down to the ground,
and P.C. Goldson fell on him. Oshon said Fuller fell on his
back and P.C. Goldson, on his knees. At that stage Oshon,
an ex-police officer, came and pulled away the gun which was
pointing upwards and took it into the Disco. Then Bailey and
August with two others came and attacked Fuller who was still
on the ground. They started kicking and punching Fuller. P.C.
Goldson tried to stop them but failed. The punching and kicking
continued for two or three minutes. Fuller attempted to get
up once but was knocked back down. When the attack ended,
P.C. Goldson saw Bailey with a rusty butchers knife, 8 to
12 ins. long, in his hand. P.C. Goldson tried to retrieve
the knife from him without success, and during that time saw
Fuller get up and walk from "side to side" towards
his car which was parked nearby. P.C. Goldson went over to
the car and found Fuller bleeding from the upper part of his
body. He was promptly taken to hospital but died of haemorrage
within five minutes of arriving there, from a stab wound in
the chest which had penetrated the heart. There was also a
stab wound in Fuller's neck, which Dr. Onnattu described as
a deep cut wound the opening being at the back on the right
side of the neck.

The Appellant
August, in an addendum to his statement to the police said
that it was Bailey who stabbed Fuller "with a butcher
knife about 12 to 13 inches in length with a wooden
handle", adding, "I know the knife. I had seen Bailey
with it stuck behind his right side in his trousers".

At the
retrial the prosecution called an additional witness, Doreth
Fuller, the deceased Walford Fuller's sister, who had not
given evidence in the original trial.

Doreth
Fuller described the altercation between Bailey and her brother
Walford; and the tussle between the police officer and her
brother over the shotgun which, she said, ended with both
of them falling down and another police officer taking the
shotgun away from them. Continuing her evidence she said:-

"P.C.
Goldson and my brother were still on the ground. I saw Hands,
Thin Man, Sherm and Bass punched and kicked him, to the
head, Then I saw Thin Man take a knife out of his right
pocket and stick Fuller in the right side of his neck. Fuller
tried to get up and fall down and Hands stabbed him in his
chest with a knife. Then Bailey made swashes over Goldson
with the knife. Then he came to me rushing with this knife
and I ran away through an alley".

She identified
"Hands" as Bailey and "Thin Man" as the
Appellant August.

At the
retrial the Appellant made a statement from the dock in which
he denied doing anything to Fuller, who he said, was his friend.
He also denied that in his statement to the police he told
Police Sergeant Watters that he saw Bailey with a knife.

In this
Appeal the Appellant has complained that the learned trial
judge erred in law -

1. in
that he did not direct the jury on the law governing joint
enterprise, where one or more of the parties go outside
the joint enterprise and inflict the injury which formed
the subject of the charge

and

2. in
that he failed to direct the jury that the Appellant/Defendant
was entitled to be acquitted if they found as a fact, that
the injury which caused the death of Walford Fuller, was
inflicted by a person who had gone outside the scope of
the common design.

Mr. W.
Elrington for the Appellant argued both these grounds together.
He drew our attention to the law on joint enterprise and common
design as set out in the
judgment delivered by Henry J.A. in the appeal to this Court
following the first trial (Criminal Appeal No. 22 of 1983)
when this Court allowed the appeal and ordered a retrial.

Mr. Elrington
first referred to the evidence of Doreth Fuller to show discrepancies
in her evidence and the omission to mention in her first witness
statement to the police that she saw the appellant stab Fuller
in the neck, but later included this piece of evidence in
another statement.

In her
first statement she said it was Bailey who stabbed Fuller
in the neck as well as in the chest. In another witness statement
some months later she said it was the appellant who stabbed
Fuller in the neck. It was put to her in cross-examination
that his had been done at the suggestion of Police Sergeant
Watters. This she denied as did Police Sergeant Watters in
his evidence.

The learned
trial judge in his summing up correctly explained to the jury
the burden of proof that rested on the prosecution. He was
at pains to point out the discrepancies and inconsistencies
in Doreth Fuller's evidence; and explained how such evidence
was to be treated and what weight might be attached to it.
He advised the jury: "If you can't accept the explanation,
then the evidence ought not to be but it is entirely up to
you."

Based
on the Appellant's denial that he had a knife and the proposition
that he did not know a knife was going to be used, Mr. Elrington
submitted that it was not in the contemplation of the Appellant
that a knife was to be used in the concerted attack of the
four men on Fuller and consequently the use of a knife could
not be attributed to him as it went beyond the common intention
of the joint enterprise to cause harm by kicking and punching
Fuller and in those circumstances the Appellant could not
be convicted of manslaughter.

That is
a situation which could have arisen if the jury rejected the
evidence of Doreth Fuller as that of unreliable witness. It
was Mr. Elrington's contention that the trial judge failed
to put this situation to the jury.

The learned
Director of Public Prosecutions submitted that the trial judge
directed the jury accurately on the issue of joint enterprise
and that in the circumstances of the present case the direction
by the learned judge sufficed when he told the jury:-

"The
prosecution is saying if you accept evidence of the prosecution
witnesses you can come to the conclusion that August participated
in the act which caused Fuller's death. Now first I want
to direct you. Where two persons embark on a joint enterprise
each of them is equally liable for such acts of the other
as are done in pursuance of the joint enterprise or purpose.
So you consider the evidence in August's case and decide
if you are satisfied that August joined together with Bailey
in a common purpose to inflict harm on Fuller. And if you
find that they shared such common purpose, decide whether
the use of a knife was within the scope of their common
purpose to inflict harm on Fuller. Then if you are satisfied
they shared such a common purpose and the use of a knife
was within the ambit of that purpose, what Bailey did in
furtherance of the joint purpose is to be regarded as the
act of August. If, therefore, you are satisfied that Bailey
stab Fuller in furtherance of a common purpose between himself
and August, then the stab by Bailey is to be regarded as
also the act of August. If you are satisfied that Bailey's
act is to be regarded as also August's act, then as regards
August, prosecution will also have established that the
injury causing death was inflicted by August. For this the
prosecution is relying on the evidence that (1) August joined
with Bailey and others to attack Fuller (2) August along
with Bailey and others kicked and punched Fuller (3) August
knew Bailey had a knife about 12" to 13" long
(4) August himself had a knife and used it during the attack
by stabbing Fuller in the neck. Prosecution says if you
accept you have evidence from which you can conclude that
stabbing Fuller with a knife was within the scope of the
concerted attack by Bailey and August. Therefore, what you
decide on this will depend heavily on what you decide about
Doreth Fuller's evidence, about August stabbing Fuller in
the neck and also what you decide about the statement put
in evidence by Sgt. Watters, that August said he knew Bailey
had a knife. So remember what I said earlier about assessing
Doreth's evidence. If you accept her evidence, then you
have clear evidence on which to consider whether the stabbing
was within August's contemplation of a joint attack upon
Fuller. If you don't accept Doreth's evidence that August
had a knife and stabbed, then you put that portion of evidence
aside and see if on the remaining you can come to any conclusion
on this point.

Now if
you conclude that August participated in the act which caused
Fuller's death, then again the prosecution says it was without
justification and again I must direct you in August's case
that there is no evidence adduced from any source on which
I can direct you to consider the issue of justification. Again,
in August's case you need not bother about that. Therefore,
if the prosecution satisfies you so that you feel sure that
August participated in the act which caused Fuller's death,
then the prosecution would also have established manslaughter
against August."

It appears
to us that the trial judge's direction to the jury was adequate
in the circumstances of this case. By their verdict the jury
clearly accepted the evidence of Doreth Fuller which showed
that the joint enterprise of Bailey and the Appellant with
a common intention to use a lethal weapon, each being armed
with a knife; and the Appellant by his admission in his statement
to the police being aware that Bailey had a knife. Thus they
contemplated going beyond a common intention of merely causing
farm to Fuller by kicking and punching him. While it was Bailey
that inflicted the fatal wound, the use of a knife in the
attack was also within the contemplation of the Appellant.
He used his knife to stab Fuller in the
neck. Thus both Bailey and the Appellant were responsible
for Fuller's death and guilty of manslaughter.

It may
be observed that the learned trial judge, by sentencing Bailey
to 5 years imprisonment with hard labour and the Appellant,
August to 3 years, indicated that the greater blame rested
on Bailey.